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Grounds publishedDecided 12 Jan 2023
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Appellate Division of the High Court

Vim Engineering Pte Ltd v Deluge Fire Protection (S.E.A.) Pte Ltd

[2023] SGHC(A) 2Case no. Civil Appeal No 29 of 2021

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  1. Introduction

  2. [1] This appeal arises out of a construction project in relation to the building located at 5 Shenton Way, Singapore 068868 (“the Building”).

  3. Facts

  4. [2] The developer of the project, UIC Investments (Properties) Pte Ltd, engaged Samsung C&T Corporation (“Samsung”) as its main contractor to redevelop the Building into both a commercial and residential property comprising, among other things, a 23-storey office and a 54-storey residential block, (comprising Towers A and B). In around July 2015, Samsung engaged the respondent, Deluge Fire Protection (S.E.A.) Pte Ltd (“Deluge”), as a subcontractor in respect of the design, supply and installation, engineering, project management and testing and commissioning of plumbing, sanitary and gas work for the project. On 23 February 2016, Samsung complained of “severe schedule delay” in Deluge’s work. In an effort to ameliorate the delays, Deluge engaged the appellant, Vim Engineering Pte Ltd (“Vim”), sometime in March or April 2016, to carry out a limited scope of plumbing works, namely, the installation and testing of sanitary pipes on and above the 20th storey of the residential block.

  5. [4] The temporary occupation permit (“TOP”) was obtained on 20 October 2017. Owing to disagreements with Deluge, Vim left the project site on 5 February 2018 and did not complete any further work. On 19 October 2018, the defects liability period (“DLP”), which ran for 12 months from the date the TOP was obtained, expired.

  6. Arguments and decision below

  7. [5] The dispute below featured two heads of claim and two heads of counterclaim. Vim’s claims were made pursuant to (a) sums promised under the Subcontract; or (b) in the alternative, a reasonable sum based on quantum meruit. The two heads of claim comprised:

  8. (a) Main works, which referred to the original scope of works set out in the Subcontract that Deluge had engaged Vim to perform.

  9. (b) Variation works, which referred to work outside the original scope of works set out in the Subcontract and these included additions or modifications that Vim had to carry out.

  10. [6] Deluge’s counterclaims were predicated on the terms of the Subcontract, and the two heads of counterclaim were:

  11. (a) Rectification works, which referred to works that Deluge had to complete or attend to during the remaining DLP after Vim had left the worksite (ie, between 5 February 2018 and 19 October 2018).

  12. (b) Back-charges, which referred to additional costs incurred by Deluge due to Vim’s breaches or failure to complete the original scope of works that it had been engaged to do, and these included: (i) Deluge’s and Samsung’s manpower costs; and (iii) penalties imposed on Deluge by Samsung for Vim’s safety infractions.

  13. Claim 1: main works

  14. [7] Vim’s argument below was that cll 4 and 5 of the Subcontract read with the Quotation entitled it to payment for the original scope of works worth $1,750,000. This was not seriously contested. Neither did Deluge dispute that the value of the main works that had been completed at the time Vim left the site (ie, 5 February 2018) was $1,742,537.74, which was $7,462.26 less than the contractually stipulated value of $1.75m. However, the parties disagreed on how much Deluge had in fact paid Vim:

  15. (a) Deluge initially claimed that it had paid Vim $1,288,624.80 up to 30 August 2017 (and so $453,912.94 remained outstanding), and that no payment was made on the subsequent payment certificates because of back-charges owed by Vim. In closing submissions, however, Deluge claimed to have paid Vim $1,293,104.90 (and so $449,432.84 remained outstanding). Following the Judge’s request for clarification on this change of position, Deluge clarified that the lower sum was the correct figure. Subsequently, however, Deluge in further submissions reverted to its position as pleaded in its defence – that it had paid Vim $1,288,624.80 (and so $453,912.94 remained outstanding).

  16. (b) Vim initially claimed that Deluge had paid $1,283,764.89 (and so $458,772.85 remained outstanding) but later submitted in the alternative – yet without retracting its earlier position – that Deluge had paid a greater sum of $1,291,987.72 (and so $450,550.02 remained outstanding).

  17. [8] The Judge accepted Deluge’s explanation that there had been clerical errors in the certification process which had “led to incorrect figures being certified for payment, and that the correct figure for what Deluge paid Vim for the main works is $1,288,624.80”: see [15] of the GD. Since the value of main works up to the point Vim left the site was $1,742,537.74 (see [7] above), Deluge owed Vim the balance of $1,742,537.74 - $1,288,624.80 = $453,912.94 in respect of main works. Vim, rightly so, does not appeal against this aspect of the Judge’s decision.

  18. Claim 2: variation works

  19. [9] As regards Vim’s claim for variation works, Vim claimed $697,130.58. Deluge contested liability for variation works and later submitted, in the alternative, that Deluge was liable only for $106,579.51 worth of variation works. The Judge agreed with Deluge and held that Deluge was not liable to Vim for any variation works: see GD at [19].

  20. [11] In support of its claim for $697,130.58 of variation works, Vim invoked cl 16 of the Subcontract, which provided that:

  21. [12] To show that Deluge had given Vim written instructions, Vim adduced in evidence drawings that Deluge had furnished to it, which Vim claimed to constitute a type of written instruction. But even assuming that Deluge had not given Vim written instructions, Vim argued that “a gentleman’s word is his bond”, and that Deluge had given oral instructions for such variation works to be carried out. In particular, it was claimed that Deluge’s director Mr Tan Ann Kiong (“Mr AK Tan”) had orally promised that Vim would be paid at meetings in October 2017, May 2018, and September 2018. Furthermore, Deluge’s representatives had signed the variation works forms. In these circumstances, the requirement of Deluge’s written instructions under cl 16 had been waived or, alternatively, that Deluge was estopped from enforcing the writing requirement because Vim had relied, to its detriment, on representations made by Deluge that the latter would pay Vim in respect of the variation works. In this regard, Vim tendered in evidence its variation works forms which Deluge’s representatives had signed.

  22. [13] Deluge mounted two complete defences to liability and one defence to quantum in respect of the variation works claim. First, Deluge contended that the claimed “variation works” were actually main works falling within the scope of cll 2, 4, and 5 of the Subcontract or rectification works (see [16] below). This was contended to be consistent with Deluge’s conduct because it had never accepted the works disclosed in Vim’s variation works invoices to be variation works. Secondly, in any event, Deluge never issued Vim any written instructions in respect of variation works as required under cl 16 of the Subcontract (see [11] above), and the language of cl 16 was plainly a condition precedent for a claim in variation works. Finally, even if Vim had a valid claim for variation works, the quantum should be confined to $106,579.51 owing to Vim’s: (a) baseless 15% “admin charge”; (b) wrongful inclusion of works disclosed in 17 of 49 variation works invoices/forms that had already been completed; and (c) excessive rates and man-hours spent in its variation works invoices.

  23. [14] The Judge disallowed Vim’s claim for variation works in its entirety and Vim appeals against this aspect of the Judge’s decision. In arriving at his decision, the Judge accepted Deluge’s argument that no written instructions had been provided as required under cl 16 of the Subcontract. At trial, both of Vim’s witnesses, Arun Meyyappan (“Mr Arun”) and Muruganandham Mathi Selvan (“Mr Anand”), admitted that Vim did not receive written instructions for the alleged variation works: see GD at [23]. Moreover, Vim’s contention that drawings could constitute written instructions did not succeed because: (a) the drawings were received from Samsung and not Deluge (at [24] of the GD); (b) Vim did not plead that the drawings were written instructions (at [25] of the GD); and (c) of the six variation works invoices that did include drawings, none of these invoices or forms included written instructions from Deluge’s project manager (at [27] of the GD). Finally, the Judge rejected Vim’s claim of estoppel or waiver because:

  24. (a) acting on verbal instructions by itself did not mean that the contractual requirement of written instructions under cl 16 of the Subcontract had been complied with (at [31] of the GD);

  25. (b) the signatures of Deluge’s project manager Mr Veeraiah Nagasundarapandian (“Mr Sundar”) and his subordinate Mr Manickam Tamilarasan (“Mr Tamil”) on the forms were, as the pair had testified, only acknowledgements that the works had been carried out and not representations that Vim would be paid (at [35] of the GD);

  26. (c) neither Mr Sundar nor Mr Tamil had the authority to waive the requirement of written instructions under cl 16 of the Subcontract (at [36] of the GD); and

  27. (d) the claim of an alleged oral promise by Mr AK Tan that Deluge would pay Vim was: (i) not particularised by Vim with consistency (at [40] of the GD); (ii) inconsistent with the fact that Deluge was at the relevant periods attempting to secure Vim’s payment of back-charges (at [41] of the GD); (iii) not supported by any documentation in writing (at [44] of the GD); and (iv) undermined by Vim’s failure to call as a witness one Velumani who was one of its two representatives at the meetings where the promises were allegedly made (at [47] of the GD).

  28. [15] In terms of the quantum that Vim asserted, the Judge also accepted that Vim’s quantification of its variation works claims was not justified:

  29. (b) While Vim relied on an email dated 31 May 2017 by Deluge’s quantity surveyor Ms Susan Ngu (“Ms Ngu”) enclosing an agreed schedule of rates, the email was expressly qualified as being “for … reference only” (at [61] of the GD).

  30. Counterclaim 1: rectification works

  31. Counterclaim 2: back-charges

  32. [19] In relation to Deluge’s counterclaim for back-charges, Deluge sought $870,507.09 and Vim contested liability. The Judge largely allowed Deluge’s counterclaim but noted that Deluge had overcharged in respect of a 15% administrative fee for each of the 16 invoices and therefore reduced Deluge’s entitlement to $858,604.36.

  33. [22] Vim denied that it was liable for either the initial back-charges or further back-charges, as follows:

  34. (a) First, Vim denied liability for the reason that, in a similar vein to Deluge’s invocation of the writing requirement under cl 16 of the Subcontract, Deluge did not likewise give the requisite written notice pursuant to cl 19.1 of the Subcontract in respect of back-charges.

  35. (b) Secondly, Vim argued that it had not caused any delays or defects in the original scope of works and suggested that Deluge had damaged the completed work. Vim also suggested that Deluge had caused its own delay by delaying the supply of materials and payment to Vim or that Mr Tamil did not conduct regular checks on Vim’s works. In any event, Vim argued that the delays and defects were minor.

  36. (c) Thirdly, Vim argued that some contemporaneous documentation – such as (i) Samsung’s site memoranda, (ii) SER’s documentation, and (iii) records of attendance of Vim’s workers at daily toolbox meetings – amounted to hearsay evidence and the contents of which have not been proved by Deluge.

  37. [23] The Judge accepted the evidence of Mr Tamil that Vim would have needed some 80 or more workers on site per day to carry out its works successfully, and that the daily toolbox meeting attendance showed that Vim only had an average of 27 workers there per day (at [76] of the GD). The Judge also accepted that Vim had placed orders for materials on short notice and so the delays, which culminated in two site meetings with Samsung, were its own doing (at [78]–[79] of the GD). Moreover, the Judge rejected Vim’s defences:

  38. (a) First, the Judge rejected the argument that Deluge’s failure to give written notice under cl 19.1 of the Subcontract was fatal to its claim for back-charges. The Judge noted that cll 16 and 19 were drafted differently, but nevertheless accepted that if Deluge acted without written notice, Deluge could not levy a back-charge within cl 19 of the Subcontract (at [93] of the GD). However, there remained two problems with Vim’s defence because: (i) Deluge had given written notice that action would be taken if Vim did not redress defects and delays in its works (at [96] of the GD); and (ii) cl 21 of the Subcontract, which contains no requirement of notice, permitted Deluge to claim against Vim for breach of contract arising from such defects and delays.

  39. (b) Secondly, the Judge rejected Vim’s suggestion that it had not caused the delays or defects because Deluge’s witnesses gave evidence that was consistent with the contemporaneous site memoranda issued by Samsung (at [84] of the GD). The allegations that Deluge had caused its own delays by delaying its supply of materials were also rejected because Vim had placed orders for materials on short notice and so the delays were its own doing (at [78] and [85] of the GD). Vim had its own project supervisor, Mr Manikandan, and could not therefore blame Deluge’s Mr Tamil for not supervising workers. Even if such defects or delays were minor, Deluge’s contractual right to levy back-charges did not depend on the delays and defects being major or minor (at [86] of the GD).

  40. (c) Thirdly, the documentation that Vim objected to was supported by the testimony of its witnesses, such as Mr Tamil and Mr Sundar. Further, they were in the nature of business records for which s 32(1)(b)(iv) of the Evidence Act (Cap 97, 1997 Rev Ed) makes an exception to the hearsay rule. The hearsay rule was not contravened in so far as Deluge’s reliance on documents issued by Samsung and SER was not for the truth of the contents but the fact that the documents were issued (at [89] of the GD). In any event, the admission of the toolbox records into evidence was not objected to at trial (at [90] of the GD).

  41. [24] As to the quantum of back-charges put forward by Deluge, the Judge found that Deluge had substantiated its claims save for the 15% admin charge that Deluge added to the back-charge invoices (at [100] of the GD). Deluge did not explain why the 15% admin charge should be allowed for “supervision and/or overhead” as nothing extra was claimed by Deluge for completing Vim’s works. Thus, the Judge allowed Deluge’s claim for back-charges in the sum of $116,722.93 (initial back-charges) + $870,507.09 (further back-charges) - 128,625.66 (15% admin fee) = $858,604.36.

  42. Summary

  43. [25] Setting-off the claims against the counterclaims, the Judge held that Vim was liable for a net sum of $105,037.74 + $858,604.36 – $453,912.94 = $509,729.16. The Judge later explained in his GD, that he had adjusted that figure given in his earlier oral judgment because in preparing his GD, he discovered that in determining Deluge’s claims for 15% “admin” charges based on its back-charge invoices No. 5, 8 to 15, he found that invoices No. 8 and 10 had themselves included certain amounts as “admin fee”; he therefore reduced Deluge’s claim to $509,377.26 (at [114] of the GD). There is no dispute before us on this downward adjustment.

  44. The parties’ cases

  45. Appellant’s case

  46. [26] Following the decision below, Vim discharged its counsel below and engaged, on a pro bono basis, Mr Avinash Pradhan (“Mr Pradhan”). In the present appeal, Vim does not appeal against the Judge’s decision on the issue of main works, but appeals against the Judge’s decision with regard to its claim of variation works and Deluge’s counterclaims on rectification works and back charges:

  47. (a) First, 34 of Vims 49 variation works invoices should have been allowed because: (i) there was a significant overlap between Vim’s and Deluge’s scope of work; (ii) Deluge’s work vis Samsung was already defective and in a state of delay prior to Vim’s engagement; (iii) cl 16 of the Subcontract Agreement should not be construed so strictly; (iv) the documentary bases for Vim’s variation claims were well-founded and established that these were true variation works; (v) Deluge had acknowledged the foregoing, and Mr Sundar and Mr Tamil had the authority and in fact did waive the requirement set out in cl 16 of the Subcontract Agreement; and (vi) Vim was, in any event, entitled to claim in restitution in respect of the 34 invoices.

  48. (b) Secondly, as to Deluge’s claim for rectification costs, these should be disallowed because: (i) Vim abandoned its DLP work on Deluge’s instructions and the Judge erred in holding that Vim was obliged to maintain a permanent presence on site; (ii) no notification had been given to Vim to conduct the works during the DLP; and (iii) the quantum that Deluge claimed was not supported by documentary evidence of man-hours spent attending to Vim’s uncompleted main works and DLP works.

  49. (c) Thirdly, as to Deluge’s claim for back-charges, these should be disallowed because: (i) Vim’s work was neither defective nor in delay; (ii) Deluge did not comply with cl 19 of the Subcontract to give notice to conduct the DLP works and such non-compliance destroys its claim; (iii) the Judge stepped beyond the boundaries of Deluge’s pleaded case in allowing Deluge’s counterclaim for back-charges on a basis other than cl 19; and (iv) there was no evidential foundation for the Judge’s acceptance of the back-charges.

  50. Respondent’s case

  51. [27] Deluge naturally disagrees and responds as follows:

  52. (a) First, the Judge was correct to disallow the claims for variation works because: (i) there was no evidence that the Judge failed to give due consideration to the issue and Vim ’s understanding of the scope of work relies on the Quotation which should be accorded the least amount of weight among the various documents; (ii) the fact that Samsung had issued a site memorandum raising the issue of delay prior to Vim’s engagement is irrelevant because the delays and defects in plumbing and sanitary works were the result of Vim’s work; (iii) cl 16 of the Subcontract Agreement must be construed strictly because it saves parties from having to dispute whether particular works are truly “variations”; (iv) the works disclosed in Vim’s purported variation works invoices were not in any event “variations”; (v) Deluge never at any material time acknowledged that the works in Vim’s variation works invoices were actually “variations”, and neither Mr Sundar nor Mr Tamil had any authority to waive the writing requirement under cl 16; and (vi) Vim is not entitled to a claim in restitution.

  53. (b) Secondly, the Judge was correct to allow Deluge’s claim for rectification works because (i) Vim left the project worksite of its own volition; (ii) under the Subcontract, it is irrelevant whether Deluge gave Vim notice to carry out DLP works; and (iii) Deluge’s claim of $105,300 for work done in Vim’s stead was reasonable and proportionate.

  54. (c) Thirdly, the Judge was correct to allow Deluge’s claim for back-charges because: (i) Deluge imposed back-charges on Vim in view of the numerous delays and/or defects in Vim’s work; (ii) Vim’s interpretation of cl 19 of the Subcontract should not be accepted and Deluge, in any event, complied with all the relevant notice requirements under cl 19; and (iii) the Judge was correct in allowing Deluge’s claim for back-charges because its pleaded claim was not confined to cl 19 of the Subcontract.

  55. Issues to be determined

  56. [28] The issues to be determined are as follows:

  57. (a) First, was the Judge correct in rejecting Vim’s claim for variation works in its entirety? More specifically:

  58. (i) Did cl 16 of the Subcontract require Deluge’s written notice?

  59. (ii) Did Deluge waive the requirement of written notice in cl 16 of the Subcontract? In this regard, did Mr Sundar and Mr Tamil have the requisite authority to do so?

  60. (iii) Did the documentation for Vim’s variation works claim support its claim that such works were outside the original scope of main works and that the quantum sought was substantiated?

  61. (b) Secondly, was the Judge correct in awarding Deluge $105,037.74 for rectification works?

  62. (c) Thirdly, was the Judge correct in awarding Deluge $858,604.36 for back-charges? Specifically:

  63. (i) Was Vim’s work defective and delayed?

  64. (ii) Was Deluge required to give written notice under cl 19 of the Subcontract and did Deluge breach this requirement? In the alternative, was Deluge allowed to rely on cl 21 of the Subcontract?

  65. (iii) Whether Deluge was able to establish Vim’s liability in respect of the individual back-charges?

  66. Issue 1: Whether the Judge was correct in rejecting Vim’s claim for variation works

  67. Written notice requirement for variation works under cl 16 of the Subcontract

  68. [29] In general, to claim for work as a variation under a contract, it is necessary to establish that (a) the work is an “extra”; (b) there is an express or implied promise to pay for the work; (c) the work was instructed by a person with authority to vary the contract; and (d) any condition precedent to payment has been fulfilled. As set out in Stephen Furst and Sir Vivian Ramsey, Keating on Construction Contracts (Sweet & Maxwell, 10th Ed, 2021) (“Keating”) at para 4-043:

  69. [30] Variation works were expressly provided for in the Quotation, which states that “…any additions/alterations to the works specified in this quotation, consider as variation” (see [11] above). It is not disputed that cl 16 contains an implied promise on Deluge’s part to pay Vim for extra work, that is, variation work. But Deluge argues that it never requested Vim for such work to be carried out since cl 16 of the Subcontract stipulates that variation works “shall be carried out only with written instruction[s] from [Deluge’s] Project Manager” [emphasis added].

  70. [31] On appeal, Vim argues that those same words “shall be carried out only with written instructions” must be regarded not as a condition precedent but rather as a procedural provision. In this regard, Vim relies on the Court of Appeal’s guidance in Comfort Management v OGSP Engineering Pte Ltd [2018] 1 SLR 979 (“Comfort Management”) at [89] that “it is not invariably the case that the absence of writing, or more generally, the failure to follow the prescribed procedure, will disentitle the party who has performed the variation works from claiming payment for those works”. In response, Deluge contends that cl 16 should be construed strictly, as was the case in Mansource Interior Pte Ltd v CSG Group Pte Ltd [2017] 5 SLR 203 (“Mansource”).

  71. In the risk allocation exercise inherent in any engineering and construction contract, this approach is justified on the ground that employers and architects “… may legitimately require an opportunity to reconsider and possibly withdraw an instruction or mitigate its effect by giving a still further or different instruction if the first is found to provoke a claim to additional payment or too costly a variation, see Hudson’s at paras 3-074 and 5-040.

  72. [33] The kind of stringent language is missing from cl 16. Clause 16 does not state that if there are no written instructions for variations from Deluge’s project manager, Vim will forfeit the right to any payment or is otherwise barred from claiming payment for work that it considered a variation. In Hudson’s, the learned authors opine at para 5-047:

  73. [34] The standard authoritative texts on construction law, like Hudson’s (at para 5-044), also recognise that in spite of cases which uphold provisions stipulating variation orders in writing as a condition precedent to the right of payment:

  74. Similarly Keating at paras 4-074, 4-075, and 4-076 states:

  75. [35] Every contract has to be construed on its particular terms and where necessary within the context in which it was entered into (see [2] above). In the present case, we do not, with respect, agree with the Judge that cl 16 is meant to “avoid…this kind of dispute” (GD at [51]), by serving as an absolute bar to a right to claim for payment of the variation. As noted above, cl 16 does not contain any words to this effect. Unlike some standard form contracts, there are also no provisions in this Subcontract Vim to give written confirmation of verbal instructions given by Deluge’s project manager for variation works. If Vim is able to make out a case on the facts that Deluge’s project manager did verbally ask or otherwise requested or required Vim to carry out “variation” or “additional” works, then such works are perfectly capable of constituting “additional” works outside the Subcontract or requested under an implied promise to pay for such additional work. We note Deluge has run a defence against Vim’s claims for variation only on the threshold point that there was no written instruction from its project manager. Deluge has not run a case that, for example, it had suffered damage because Vim had failed to comply with the strictures set out in cl 16.

  76. [36] In Mansource, the plaintiff was the subcontractor to the main contractor for interior fitting out works to a section of the project and the defendant was a sub-subcontractor to the plaintiff for the wall finishes and joinery works under two sub-contracts. Each of these sub-contracts between the plaintiff and defendant expressly provided that the sub-contracts were back-to-back with the main contract between the plaintiff and the defendant. The court there held that as a consequence, the defendant was precluded from advancing a variation claim under either sub-contract unless the main contractor authorised and approved the variations. It is evident that the relevant clause, cl 17, (see Mansource at [7]), is quite specific and quite different from cl 16 in the appeal before us:

  77. Waiver

  78. [37] We now turn to address the issue of waiver. We first note that Deluge had accepted in its submissions, correctly in our view, that the contractual stipulation of written notice may be departed from to permit a claim for variation work where there is sufficient proof of waiver or estoppel. The Court of Appeal in Comfort Management explained at [89]–[90]:

  79. [38] The most recent iteration of Chow Kok Fong, Law and Practice of Construction Contracts, vol 1 (Sweet & Maxwell, 5th Ed, 2021) at para 5.029 similarly affirms that the law permits the application of principles of waiver or estoppel in meritorious cases despite non-compliance with requirements of written notice:

  80. [39] This proposition is similarly elucidated in Hudson’s at para 5-024:

  81. [40] Such an approach comports with an additional commercial reality that intermediate contractors and sub-contractors in large-scale building projects are engaged in complex and overlapping scopes of work set out in “back-to-back” contracts. In the present case, cl 16 stipulates that variation work claims shall be on a “back-to-back” basis. As noted by the High Court in GIB Automation Pte Ltd v Deluge Fire Protection (SEA) Pte Ltd [2007] 2 SLR(R) 918 (“GIB Automation”) at [35] and [45]–[50], a “back-to-back” provision, while not uncommon in many sub-contracts in the construction industry, is not a term of art and must be construed in the light of the factual matrix known to the parties at the time they contracted and the contract as a whole. More importantly, the effect of such a provision is to enable an intermediate contractor “who has undertaken certain obligations under a head contract … [to] pass on those obligations to a sub-contractor” and thereby avoid exposure under either contract (GIB Automation at [45]). But as the High Court noted in GIB Automation at [50]:

  82. [41] Clause 16 of the Subcontract provides that any variation works, (viz, additions, omissions or modifications), shall be on a back-to-back basis with Deluge’s subcontract with Samsung but it goes on to provide that “[s]uch variation” shall be carried out “…only with the written instruction from [Deluge’s] Project Manager…”. Deluge thus reserves to itself control over sanctioning of variations and Vim has to base its claims on the unit rates in accordance with the Schedule of Rates in the sub-subcontract with Deluge; where the unit rates are not so contained in the Schedule of rates in the sub-subcontract, then the amount shall be such sum as “...in all circumstances be reasonable and agreed between the parties”.

  83. [42] Deluge’s approach that variation claims would be subject to Samsung’s approval of such claims as forwarded to Samsung by Deluge is problematic on two levels. First because this is not provided for in the Subcontract and secondly, the main contract between Samsung and Deluge was not in evidence and Vim was not privy to any of Samsung’s criteria for the approval of variation work claims. Even if Samsung had approved the variation work claims, nothing would have prevented Deluge from pretextually denying Vim for the same. It is therefore clear that Deluge “would have been obliged to make such applications in good faith and in a timely manner”: GIB Automation at [54]. More importantly, although Mr Tamil and Mr Sundar repeatedly stated in writing that Vim’s claims for variation works would be subject to Samsung’s approval, it is not evident that Deluge ever conveyed to Vim whether Samsung had approved the variation work claims that Deluge had purportedly submitted on Vim’s behalf. As the appellant points out, it is telling that Deluge does not in these proceedings rely on the “back-to-back” mechanism to argue that its approval of the variation works claims were subject to Samsung’s approval and that Samsung had not approved those claims. This is relevant to the question of the clarity of the acknowledgment where Vim’s argument of waiver by election is concerned.

  84. [43] The requirements for waiver by election are settled. When a party unequivocally chooses not to exercise one of two inconsistent rights, and he is aware of the circumstances giving rise to the existence of that right, he would be deemed as having elected to waive that right. As the Court of Appeal explained in Audi Construction v Kian Hiap Construction [2018] 1 SLR 317 at [54]:

  85. [44] Quite aside from the fact that Deluge’s representatives Mr Tamil and Mr Sundar signed 32 of the 34 variation work claims, what was of particular significance was the fact that, Deluge’s employees made written comments on 24 of the 32 signed forms stating that the claims would be subject to Samsung’s approval. Against the backdrop of the operating “back-to-back” mechanism as noted above, this was a clear acknowledgment that Deluge was not disallowing the claims on the basis of not having given written instruction under cl 16 of the Subcontract to carry out such work. Subsequently, even when the claims passed into the domain of Deluge’s administrators, there was no evidence that the administrators rejected the variation work claims on the basis of the requirement of written notice nor did they appear to regard Mr Tamil and Mr Sundar to be in error for receiving and accepting the same invoices and forms. In fact, for variation work claims UIC/DE/007, UIC/DE/008 and UIC/DE/009, the handwritten comments directed Vim to “clarify” or “discuss with [the] contract department”. Thereafter, from form UIC/DE/012 onwards, the comments were ostensibly made with greater confidence as they stated that the claims would be subject to Samsung’s approval. If any inference is to be drawn, it would be that on balance, Mr Sundar and Mr Tamil had sought such clarification and understood that such invoices/forms would be subject to Samsung’s approval. Deluge’s administrators must be taken to have known of the notice requirement in cl 16 and their silence amidst the passage of time indicates to us that there had been a voluntary relinquishment of this right.

  86. [45] In our judgment, it was irreconcilable for Deluge’s representatives to sign the variation work claims and include written comments that these would be subject to Samsung’s approval, and then for them to subsequently insist that the work ought to have been carried out only under written instructions from Deluge pursuant to cl 16 of the Subcontract. This is not to say that these acknowledgments, on their own, amounted to an acknowledgment that Vim would be paid for these works (given that this was subject to Samsung’s approval). But we are amply satisfied that Deluge, by the totality of circumstances, had – in at least 24 of Vim’s variation works claims – by election waived the requirement of written notice and could not now demand its strict adherence. As for Samsung’s approval, Deluge did not at trial contend that Samsung had denied Vim’s variation work claims. It is not open to Deluge to mount this argument now.

  87. Authority of Mr Sundar and Mr Tamil

  88. [46] In the present appeal, Vim argues that Deluge had not pleaded a want of authority on the part of either Mr Sundar or Mr Tamil, and that accordingly, the Judge’s finding that Mr Sundar and Mr Tamil did not have any authority to waive the written instruction requirement (at [36] of the GD), was unsustainable. In reply, Deluge does not deny that the issue of whether Mr Sundar or Mr Tamil had the authority to waive the written instruction requirement was not pleaded, only that this was an issue which had been raised at trial. In any case, the contention that neither Mr Sundar nor Mr Tamil had the authority of waiver was in line with the position Deluge had taken, that Vim had proceeded to carry out variation works without written instruction.

  89. [47] As stated by the Court of Appeal in V Nithia (co-administratrix of the estate of Ponnusamy Sivapakiam, deceased) v Buthmanaban s/o Vaithilingam and another [2015] 5 SLR 1422 (“V Nithia”), “the general rule is that parties are bound by their pleadings and the court is precluded from deciding on a matter that the parties themselves had decided not to put into issue" (see also PT Prima International Development v Kempinski Hotels SA [2012] 4 SLR 98 at [37]). Although this general rule may be departed from in the limited circumstance where no prejudice would be caused to the other party or where it would be clearly unjust not to do so (V Nithia at [40]), this is clearly not the case in the present. The Judge’s reasons appear to be the salutary objectives of a provision like cl 16 and appears to have been reasoned on the basis that a contract administrator has no usual authority to vary a contract beyond his authority as stipulated for in the contract itself, (see [37] and [38] of the GD), for which no authorities were cited. With respect, we cannot agree.

  90. [48] We can do no better than to refer to the standard texts. Keating opines at para 4-061:

  91. This principle also extends to a relationship between an intermediate subcontractor and its own sub-subcontractor. In relation to written notices as conditions precedent, Hudson’s states at para 5-044:

  92. [49] Deluge alleges that Vim only raised the issue of whether specific employees, such as Mr Sundar and Mr Tamil, had the authority to waive the requirement of written instruction at trial and submits that it could not specifically submit on an issue not canvassed by Vim on its own pleadings. This is incorrect. In Vim’s Statement of Claim at paragraph 3, it pleaded, inter alia, that it submitted 51 invoices for variation works and Deluge’s site engineers, Mr Tamil and Mr Manivannan as well as Deluge’s Project Manager, Mr Sundar, between them at various time acknowledged and accepted the hard copy of the Progress Claims for variation works; the email copies of the said invoices “…were subsequently also signed, accepted and approved by Mr Sundar … on behalf of Deluge as shown below. The total quantum of Variation Works is substantial at about $697,130.58.” Vim repeated the essential allegation of acceptance of those works in para 11, and states at para 14: “…Deluge are now estopped from denying the validity and quantum of the claim herein, since the same was never refuted by Deluge at any time with any cogent or supporting evidence.” With these allegations raised in the Statement of Claim, if Deluge wanted to take the point that Mr Sundar and Mr Tamil did not have the authority to waive compliance with the written instructions requirement in cl 16, then, it was incumbent on them to plead the same. Deluge did not do so. It is clear that Deluge chose to defend Vim’s claims for variations only on the ground that the variations were not approved in writing as required by cl 16.

  93. [50] It is not in dispute that Mr Sundar was Deluge’s Project Manager and Mr Tamil was its site engineer. Significantly therefore, Mr Sundar was the Project Manager with the authority to issue written instructions under cl 16. As he had signed on the hard copies of Vim’s variation claims and later wrote comments as those set out in [53] below, Deluge is in no position to now contend that Vim’s claims were invalid because they were not pursuant to written instructions under his hand. Mr Sundar was the one person who should have, but did not, reject Vim’s variation claims at the material time as not being carried out pursuant to his written instructions. Neither did he protest or reserve Deluge’s position in accepting them.

  94. [51] Moreover, Mr Sundar and Mr Tamil signed on Vim’s printed forms which had the words “VARIATION WORK” on a bold strip across the top of the form, just under Vim’s name, address, contact details, UEN number, and its logo and on some of the accompanying sheets of photographs or drawings, there were the printed words “ABORTIVE WORK” or sometimes in manuscript “ADDITIONAL” Work. There was no mistaking what they were signing. Mr Sundar’s actions were cogent evidence of waiver of the requirement in cl 16. Mr Sundar testified that Mr Tamil’s signatures on the variation work forms were as good as his signature. Mr Tamil was a site engineer and it was evident from his own explanation regarding his role that Vim’s employees had to abide by his instructions. Further Mr Tamil also said under cross-examination that he would sign on behalf of Mr Sundar when he was not around.

  95. [52] As for context, and as referenced in [2] above, Deluge was under pressure for being behind schedule and it engaged Vim, a sanitary and plumbing contractor (and who Deluge had previously used for part of its work, viz, the specific installation and testing of pipes from the 20th storey upwards) to help carry out only a specified part of their work. Mr Pradhan is correct to characterise this as a subset of Deluge’s work. This is evident from the detailed work items set out in the Quotation. They were quite specific. Given this context of the kind of work Deluge and Vim were to carry out, Mr Sundar’s and Mr Tamil’s authority at the site here, as Project Manager and Site Engineer, was certainly a far cry from, for example, an unsigned sketch made by an architect’s assistant which was argued unsuccessfully to be a “direction” by the architect’s hand in writing, (see Myers v Sarl [1860] 3 E. & E. 306).

  96. [53] An examination of the evidence shows that in 32 of the 34 variation claims, (UIC/DE/001 to UIC/DE/036), submitted over a period of time, Mr Sundar or Mr Tamil had signed the same (UIC/DE/027 and UIC/DE/036 were not signed), and on 24 of these 32 variation claims, Mr Sundar or Mr Tamil had a handwritten comment to the effect that the variation claims would be submitted to Samsung and either “wait for [Samsung] respond” or “upon approval respond to Vim.” In our judgment, this was a clear waiver of the written instruction requirement in cl 16. For the purposes of this appeal, we therefore find that Mr Sundar and Mr Tamil had waived the requirement of written instructions for variation claims, which waiver was binding on Deluge; Deluge was, for the reasons set out above, not entitled to raise a lack of authority of Mr Sundar or Mr Tamil to waive this requirement as it had not pleaded the same.

  97. Scope and quantum of Vim’s variation works claim

  98. [54] In the decision below, the Judge found it unnecessary to find which of Vim’s variation claims concerned true “variations” outside the original scope of works, since the reason for the written notice requirement under cl 16 was to obviate this sort of dispute and Vim’s witnesses Mr Arun and Mr Anand were not well placed to testify as to oral instructions given for such works to be carried out (at [51]–[52] of the GD). As to quantum, the Judge found that Vim failed to give credit for a stipulated 10% discount and had, outside the bounds of the agreement, imposed a 15% admin charge (at [60] of the GD) and that the reference to rates listed in an email by Ms Ngu dated 31 May 2017 was not an agreed schedule of rates and were purely for reference only (at [61] of the GD).

  99. [55] In this appeal, Vim takes issue with both the Judge’s findings on the scope and quantum:

  100. (a) On the issue of scope, Vim refers to the Quotation, which it says is the authoritative guidance on the original scope of works.

  101. (b) On the issue of quantum, Vim accepts the Judge’s observations as regards the 10% discount and the 15% admin charge, but nevertheless submits that the “Star Rate” applied by Vim to its variation work claims was the rate that had been provided by Deluge in a sample form which Deluge’s contracts department had forwarded to Vim to permit Vim a second opportunity to “substantiate” its manpower claims.

  102. [56] The scope of the 24 variation works claims (see [53] above), as well as the quantum of each claim as asserted by the appellant and the respondent, are set out in the table below:

  103. Variation work invoice no.

  104. Description

  105. Vim’s claim (granting the 10% discount and discounting the 15% admin charge)

  106. Deluge’s submission on quantum as set out in Annex A of Deluge’s Closing Submissions

  107. UIC/DE/005

  108. Sanitary and water pipe rectification Tower (“Twr”) RA-9 to 20 Unit BS3, A1, C1, B2, S3, AS2, AS3 as Deluge had improperly installed the pipes/pipes were damaged by third parties and Vim had to rectify it for Deluge

  109. 54,528.00

  110. 8,871.30

  111. UIC/DE/006

  112. Sanitary and water pipe rectification Twr A-L9 to 20 Unit BS1, S1, AS1, S2, BS2, B1 cold water pipe

  113. improperly installed by Deluge

  114. 45,720.00

  115. 6,822.90

  116. UIC/DE/012

  117. Housekeeping Twr RA-L25 to 33 clean up debris

  118. from other contractors

  119. 37,242.00

  120. -

  121. UIC/DE/013

  122. other contractors

  123. 6,900.00

  124. -

  125. UIC/DE/014

  126. Sanitary pipe rectification Twr RB-L52 pipe damaged by [Samsung]

  127. 492.00

  128. 62.70

  129. UIC/DE/015

  130. Chokage clearing with power vacuum Twr RAB-L9 to 15 damaged by [Samsung]

  131. 22,176.00

  132. 12,416.00

  133. UIC/DE/016

  134. Installation of additional inlet and outlet pipes Twr RAB-9 to 33 and 36 to 51 added in new drawing

  135. 44,832.00

  136. 7,862.40

  137. UIC/DE/017

  138. Chokage clearing with power vacuum Twr RAB-L16 to 51 third parties removed floor trap and threw debris

  139. 135,492.00

  140. 38,228.00

  141. UIC/DE/018

  142. Washing machine and kitchen sink pipe reinstallation Twr RAB-L9 to 33 due to changed setting point and damage by [Samsung]

  143. 34,008.00

  144. 13,677.12

  145. UIC/DE/019

  146. Sanitary pipe rectification Twr RA-L50 Unit C4 damaged by third parties

  147. 384.00

  148. 25.50

  149. UIC/DE/020

  150. Sanitary pipe rectification Twr RA-L22 Unit 20

  151. damaged by third parties

  152. 552.00

  153. 144.00

  154. UIC/DE/021

  155. Unchoke washbasin pipe choked by debris Twr RAL40 Unit B3 [Samsung] archi team threw debris into wash basin pipe

  156. 336.00

  157. 144.00

  158. UIC/DE/022

  159. Water pipe rectification damaged by [Samsung] Twr RBL17 Unit S2 damaged by [Samsung] archi team

  160. 552.00

  161. 18.90

  162. UIC/DE/023

  163. Washing machine outlet pipe relocation Twr RB-L52 Unit PH1&2 instructed by [Samsung]

  164. 552.00

  165. 18.36

  166. UIC/DE/024

  167. Water pipe rectification work Twr RAL36,37,39,41,42,43,50

  168. damaged by [Samsung] archi team

  169. 2,880.00

  170. 600.60

  171. UIC/DE/025

  172. Wash basin outlet choke clearing Twr RA-L14 Unit 18 damaged by [Samsung] archi team

  173. 276.00

  174. 144.00

  175. UIC/DE/026

  176. Sanitary pipe choke clearing Twr RA-L19 Unit 19 damaged by others

  177. 114.00

  178. 144.00

  179. UIC/DE/028

  180. Floor trap choke clearing Twr RA-L44 Unit S4

  181. damaged by [Samsung] archi team

  182. 114.00

  183. 144.00

  184. UIC/DE/029

  185. Sanitary pipe choke clearing Twr RB-L43 Unit S5 damaged by [Samsung] archi team

  186. 114.00

  187. 144.00

  188. UIC/DE/031

  189. Sanitary pipe choke clearing Twr RA-L43 Unit S5 damaged by [Samsung] archi team

  190. 168.00

  191. 144.00

  192. UIC/DE/032

  193. Sanitary pipe choke clearing Twr RB-L43 Unit S4 damaged by [Samsung] archi team

  194. 168.00

  195. 144.00

  196. UIC/DE/033

  197. Sanitary pipe choke clearing Twr RB-L43 Unit C3 damaged by [Samsung] archi team

  198. 276.00

  199. 144.00

  200. UIC/DE/034

  201. Sanitary pipe choke clearing Twr RB-L43 Unit C2 damaged by [Samsung] archi team

  202. 276.00

  203. 144.00

  204. UIC/DE/035

  205. Sanitary pipe choke clearing for washing machine Twr RB-L43 Unit C2 damaged by [Samsung] archi team

  206. 276.00

  207. 144.00

  208. Total

  209. 388,428

  210. 90,187.78

  211. Scope

  212. [59] The Quotation tabulates with particularity how the $1.75m fee would be split among 20 enumerated heads of the main Subcontract works. This tabulation could, on one view, be seen as a strong limiting factor as to what constitutes “main Subcontract works”, given that the table in the Quotation particularises how the agreed fee of $1.75m would be divided among all the works that Vim promised to undertake. We note that Deluge strenuously disputes this. Deluge contends that the broad language of cll 4 and 5 of the Subcontract provide that the Main Subcontract Works include but are not limited to the works enumerated in the Quotation. The Quotation also provides as follows:

  213. [61] The Quotation, as referenced above, sets out with great particularity the works Vim had agreed with Deluge to carry out. For example, in serial number 1 of the Quotation, it states that for levels 9 to 20, “Supply manpower and Hand tools for Installation, Commissioning and Testing only. Unit Type: 1 Toilet + 1 Kitchen.” The three sub-items are “Copper pipe corridor & DMC”, “Floor trap insulation” and “Sanitary wares Installation only”; for which the quantity (“Qty”) was 84, the rate was $990.00 and the amount was $83,160.00. The descriptions of Vim’s variation claims (see Table at [56] above) have not been shown to fall within that scope. The descriptions in many documents were for the making good of damage caused by others (“… damaged by [Samsung] archi team...”) or carrying our changes like “… Washing Machine outlet pipe relocation Twr RB-L52 Unit PH1&2 instructed by [Samsung]” (UIC/DE023), which would be beyond the scope of the main Subcontract Works.

  214. [62] In our judgment, Deluge’s own conduct suggests that it did not consider this work to be part of the main works. We reiterate the point made earlier at [44] and [53] above that Mr Sundar and Mr Tamil had both signed the forms and further made written comments that such claims would be subject to Samsung’s approval. This is a compelling indication that Deluge did not regard these works to be part of the main works. If they had in fact regarded such works to be part of the main works, then one would have expected Mr Tamil, Mr Sundar or the contracts administration team to reject the claims summarily on this basis.

  215. Quantum

  216. [64] As noted at [54] above, the Judge at [61] of the GD cast doubt as to whether the rates referred to in an email from Deluge’s Ms Ngu (Deluge’s quantity surveyor) were an agreed schedule of rates and held that these rates were simply for Vim’s reference only.

  217. [65] With respect, we disagree and we accept Mr Pradhan’s point that this email required greater context and elucidation. Prior to this email, Vim had submitted two sets of invoices and forms – UIC/DE/001 to UIC/DE006 and UIC/DE007 to UIC/DE/011. As Mr Arun testified in cross-examination, the rates in these forms were originally pegged to a daily rate of $350 for supervising manpower and $250 for general labour. On 31 May 2017, Deluge’s contract department sent Vim an email enclosing Deluge’s sample invoice for, as the Judge noted, Vim’s reference. The email requested for Vim to “please substantiate 350 for manpower and 250 for supervision”. As Mr Arun explained in cross-examination, Vim relied on Deluge’s sample form for Vim’s subsequent submission and re-submission of its variation work claims. In particular, Vim relied on the specific “star rates” mentioned in Deluge’s sample invoice which, according to Mr Arun, was $20/hr for supervising manpower and $18/hr for general manpower.

  218. [66] Before us, Mr Pradhan acknowledged that Vim did not have evidence to show that the star rates in the variation work claims were rates that had actually and already been paid or were not in dispute. Nevertheless, in our view, Deluge did not and has not put forward an explanation as to what those “star rates” were or ought to be, despite the fact that this was an expression utilised in its own sample form. At any rate, we emphasise that Mr Tamil and Mr Sundar acknowledged the forms in such a way as to indicate to a reasonable observer that the claims were forwarded to Samsung for approval. This again suggests to us that Deluge did not, in principle, object to the “star rates”. Nor could they object, since these rates originated from the documentation which they had sent to Vim to follow. Indeed, if Deluge had further complaints as to the rates set out in the variation work claims, it had every opportunity to raise them but did not do so. We now proceed to consider each of the variation work orders:

  219. (a) UIC/DE/005: $54,528.00. This work on sanitary and water pipes at Tower A Level 9 to 20 was clearly intended to rectify damage caused by Samsung’s other contractors, namely the architecture team. Mr Tamil wrote “please take note that we had submitted to [Samsung] waiting for [a] reply”.

  220. (b) UIC/DE 006: $45,720.00. This work on sanitary and water pipes at Tower B Level 9 to 20 was a result of Deluge’s incorrect installation, and Mr Tamil wrote that “those attached photos only able to accept” and Vim provided photos for works on Levels 9, 14–20. Accordingly, Deluge must have accepted these works to these levels at the very least.

  221. (c) UIC/DE/012: $37,242.00. This was housekeeping work – “clean up debris from other contractors” - done at Samsung’s request and Deluge’s instruction at Tower A from Levels 25 to 33. Mr Tamil wrote on the form that “based on your submission we will submit to [Samsung] upon [Samsung’s] confirmation will move forward if cost confirmation by contract department”.

  222. (e) UIC/DE/014: $492.00. This work was for the rectification or reparation of sanitary pipes on Tower B Level 52. The damage was caused by Samsung’s “Archi Team (Kobe)”. Photos indicated that pipe damage was occasioned by another contractor dealing with the wall.

  223. (f) UIC/DE/015: $22,176.00. Vim was tasked to clear choke on floor traps on Tower A and B Levels 9–15. This extra work required the use of a vacuum machine, as Samsung’s “Archi team” had removed the protection on the pipes and had thrown construction debris into the floor trap. Mr Tamil wrote that “we had submit to [Samsung] wait for [Samsung] respond [sic] accordingly”.

  224. (g) UIC/DE/016: $44,832.00. Vim was required to install additional inlet and outlet pipes for a dishwasher in Tower A. This was done after a new drawing was issued only after the work had been completed according to the original specification. Mr Tamil acknowledged that “we had submit to [Samsung] wait for the respond [sic] once receive we respond”.

  225. (h) UIC/DE/017: $135,492.00. Vim was required to clean the floor trap choke for Towers A and B Levels 16–51. This was done because Samsung’s team (“[Samsung] archi team”) removed the floor trap protection. Mr Tamil acknowledged that “we had submit to [Samsung] wait for the [Samsung] respond [sic]”.

  226. (i) UIC/DE/018: $34,008.00. This required the reinstallation of a washing machine and kitchen sink pipe that had been damaged by other contractors on Towers A and B Levels 9–33. A new drawing had been issued only after the work was completed according to the original specification. Mr Tamil acknowledged “we will submit to [Samsung] accordingly wait for the respond [sic]”.

  227. (j) UIC/DE/019: $384.00. A sanitary pipe needed to be rectified because it was “damaged by others”. Photographs were provided showing a hole occasioned to the pipe. Mr Tamil acknowledged that “we will submit accordingly based on the [Samsung] respond [sic] we will move forward”.

  228. (k) UIC/DE/020: $552.00. A sanitary pipe needed to be rectified because it was “damaged by others”. Photographs were provided and the pipe appeared to have been punctured by a wooden plank. Mr Tamil acknowledged with “will submit accordingly wait for the [Samsung] respond [sic]”.

  229. (l) UIC/DE/021: $336.00. Vim was required to unchoke a Tower A Level 40 washbasin pipe. “[Samsung] archi team” had put cement into the wash basin pipe. Photographs were provided.

  230. (m) UIC/DE/022: $552.00. Vim was tasked to rectify a water pipe choke caused by the “[Samsung] archi team”. Photographs were provided.

  231. (n) UIC/DE/023: $552.00. Vim was required to change the washing machine outlet pipe, and was the result of Deluge requesting a change of location for this outlet pipe. Mr Tamil acknowledged that “we will submit accordingly based on the [Samsung] Respond [sic]”.

  232. (o) UIC/DE/024: $2,880.00. This was additional work for Tower A Levels 36, 37, 39, 41, 42, 43 and 50. The pipe that Vim installed had been damaged by Samsung’s “archi team”. Mr Tamil acknowledged that “we will submit to [Samsung] accordingly wait for [Samsung] respond [sic]”.

  233. (p) UIC/DE/025: $276.00. Vim was required to rectify a wash basin pipe choke for Tower A Level 14. The damage was caused by “[Samsung] archi”.

  234. (q) UIC/DE/026: $114.00. Vim was tasked to deal with chokes and defects, and this was caused by Samsung or its contractors.

  235. (r) UIC/DE/028: $114.00. Vim was required to clear chokes. These were caused by Samsung or its contractors.

  236. (s) UIC/DE/029: $114.00. Vim was required to clear chokes. These were caused by Samsung or its contractors.

  237. (t) UIC/DE/031: $168.00. Vim was required to clear chokes. These were caused by Samsung or its contractors. Photographs were provided.

  238. (u) UIC/DE/032: $168.00. Vim was required to clear chokes. These were caused by Samsung or its contractors. Photographs were provided.

  239. (v) UIC/DE/033: $276.00. Vim was required to clear chokes. These were caused by Samsung or its contractors. Photographs were provided.

  240. (w) UIC/DE/034: $276.00. Vim was required to clear chokes. These were caused by Samsung or its contractors. Photographs were provided.

  241. (x) UIC/DE/035: $276.00. Vim was tasked to perform “sanitary pipe choke clear” for Tower B Level 43 (Washing Machine).

  242. [67] In our judgment, having considered the evidence in support of Vim’s claims, all of which had been acknowledged by Deluge as being forwarded to Samsung and which employed “star rates”, we are satisfied that Vim had substantiated the quantum sought for in respect of the variation work invoices and forms. We therefore allow the appeal on this issue. The Judge’s decision on Vim’s variation claims is set aside and we allow Vim’s claim for variation works in the sum of $388,428.

  243. Issue 2: Whether the Judge was correct in awarding Deluge $105,037.74 for its rectification works counterclaim

  244. [68] Vim takes specific issue with the Judge’s decision at [65] of the GD to allow the computation of $105,300 in respect of rectification of works done by Deluge during the balance of the DLP when Vim was absent from the worksite. The Judge derived this figure from the AEIC of Mr Cheo Hwee Kwang (“Mr Cheo”), the Managing Director of Deluge, where he stated:

  245. [69] Leaving aside the question as to whether Vim left the worksite of its own volition, which in all likelihood it did, we note that this claim is allegedly for rectification of Vim’s defective work. It is clear that Mr Cheo’s evidence, as it stood, was a bare allegation without any of the necessary particulars like what part of Vim’s work was defective, why or how was it defective, how it was rectified or repaired, by whom it was rectified and why Deluge required a full-time supervisor and worker on site for 9 months. This is insufficient on its own to discharge Deluge’s burden of proof. Deluge did not furnish any legible documentary evidence of the man-hours it spent attending to specific defects occasioned by Vim’s work, in stark contrast to Vim’s approach in documenting invoices and forms with respect to the variation work claims. We note Mr Cheo was the managing director of Deluge. The persons who should be able to provide and attest to such necessary evidence in support of this claim were most probably Mr Sundar and/or Mr Tamil. Under cross-examination, Mr Sundar was unable to point to any evidence of defective works. Mr Tamil’s AEIC had some evidence of defects, however they were not particularised. Mr Tamil agreed in cross-examination that there was no evidence of the actual defects.

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